Holding the 57 Accountable

This is short and to the point:

The 57 Democrats who capitulated to White House demands for broad FISA changes have only one reasonable excuse for their actions.  That excuse carries along with it a built-in accountability moment, and the 57 should be held accountable when that moment comes due.

The only excuse for their capitulation is their fear that a terrorist attack is imminent and that it cannot be prevented without giving-in to Bush's demands.  You may not personally agree that there is any such imminent threat; you may not personally agree that even if there is such a threat, that the trade-off of civil liberties is justified; but for a Senator or Representative who does not share your assessments, there is at least a colorable argument that giving the Bush administration increased surveillance authority for the next six months is the right policy.

Some of you may be so violently in disagreement with their assessments of the threat and the balance of civil liberties that you are already willing to regard the 57 as beyond redemption.  But even if you are willing to give the 57 the benefit of the doubt, they can and must be held accountable for their judgments.

1. If in six months the 57 can show us no evidence of a terrorist plot that was thwarted because of the new surveillance authorities that they granted the Executive, then at a minimum they must be labeled and held politically and electorally accountable for having bad judgment of both terrorist and constitutional threats.  

2. If in six months the 57 can show us no evidence of a terrorist plot that was thwarted because of the new surveillance authorities that they granted the Executive, and they then proceed to reauthorize those expanded surveillance activities, then they will deserve every bit of political opposition that can be mustered against them.

Once again, my point is not that the actions of the 57 are correct or excusable, but rather that even if we accept their assessment, then there is a hard and fast accountability moment in six months that the 57 should not be allowed to evade.

•  By post hoc legalization of bushco crimes

  they deserve full opposition anyway.  At a minimum I will not support any democratic candidate with the democratic being their only qualification, so no money to a general fund, money only to specific candidates.

  by NearlyNormal on Sun Aug 05, 2007 at 06:58:57 AM PDT

  •  Huh?

    By my reading, S.1927 contains no provisions offering post hoc legalization or indemnification for prior violations of FISA.  Could you please point out where you think it does so?

    by Foodle on Sun Aug 05, 2007 at 07:11:47 AM PDT

    •  My first thoughts

      once new and not improved FISA was passed was that bush just got a free pass for past privacy crimes. No, it is not written in the new law to give a retroactive get out of jail free card, but once we find that bush lied when he told us that there had been no domestic wiretapping without a warrant, who is going to have the balls to confront the illegal wiretaps? Not this Congress!!!

      by DickCheneyBeforeHeDicksYou on Sun Aug 05, 2007 at 07:24:49 AM PDT

      •  At a minimum

        ...there are still active legal actions against the prior illegal surveillance activities that are not mooted by S.1927.

        by Foodle on Sun Aug 05, 2007 at 07:31:21 AM PDT

        •  I am sure that there are

          But my feelings are that because those types of violations are now legal, (as long as Gonzo approves), I do not believe anyone would force the issue.

          by DickCheneyBeforeHeDicksYou on Sun Aug 05, 2007 at 07:38:46 AM PDT

    •  104A

      I believe the section you are looking for ins 104A, page 2.

      And even if that doesnt directly address youre question, you dont honestly believe that Bush wanted this legislation , so he could strengthen checks and balances on the Executive do ya??

      by kulshan on Sun Aug 05, 2007 at 07:35:26 AM PDT

      •  Huh?

        S.1927 contains no section 104A.

        by Foodle on Sun Aug 05, 2007 at 07:42:53 AM PDT

        •  sorry 105A

          The key provision of S.1927 is new section 105A of FISA (see page 2), which categorically excludes from FISA's requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States."

          ....... there ya go wise-guy.

          You really read the whole thing since last night???

          lol

          by kulshan on Sun Aug 05, 2007 at 07:53:37 AM PDT

          •  Sure, I read the whole thing

            I read it again this morning after the above claim that S.1927 offers a post hoc legalization of FISA violations.  It does not.  Section 105A does not.  That section modifies what counts as electronic surveillance under FISA for the next six months.  It does not excuse anyone for past violations of FISA.

            by Foodle on Sun Aug 05, 2007 at 08:16:40 AM PDT

            •  Who Claimed it Did????

              It just makes the CRIME he waws committing not a crime.

              And secondly , unless you are a constitutional lawyer , dont even bother pretending you read and understood that 2 page document.

              please.

              You have no idea whats in that amendment.

              You trust Dumbya??

              by kulshan on Sun Aug 05, 2007 at 08:19:23 AM PDT

              •  Please

                Don't project your ignorance onto others.  This entire sub-thread has been about whether S.1927 offers a post hoc legalization of Bush's FISA crimes.

                by Foodle on Sun Aug 05, 2007 at 08:24:06 AM PDT

                •  Puh-lease

                  Esactly .

                  where as YOU and only YOU are talking about whether this affects crimes that he ALREADY commmitted.

                  Which it obvioulsy doesnt as that is contrary to our judicial system . And the most rudimentary understanding of it would make that painfully obvious.

                  It does provide legalization of Bush continued FISA activity.But there is a diffrence between "post hoc" and amending a  law.

                  Which is what happened. They amended a pre exisiting law that Dumbya was violating , so that his actions would not be criminal IN THE FUTURE.

                  No one but You was saying it was going to absolve  him of responsibility for past crimes.

                  Thats all you.

                  And like I said, unless youre a congressional scholar dont pretend you read and UNDERSTOOD that amendment.

                  by kulshan on Sun Aug 05, 2007 at 08:41:46 AM PDT

                  •  Read the title of the first response

                    And then try to understand the resulting discussion before insisting on changing it.

                    by Foodle on Sun Aug 05, 2007 at 08:48:48 AM PDT

                    •  Glad you can stick to insult of a personal nature

                      Its a very GOP tactic.

                      kinda ironic

                      dont debate the issue , just smear anyone who disagrees with you.

                      secondly, I was agreeing that the amendement doesnt absolve Dumbya of past crimes. If you had read my post you would have seen it.

                      and lastly, I was choosing to address you diary post not DickChenyBeforeheDciksYou's comments.

                      and the fact that u think time will make things better.

                      letting 6 mos pass wont strengthen any arguement, and its that same flawed logic that lead the administration to continue to move the goal posts in Iraq.

                      .....just a lil more time, thats all we need.

                      and did u read the Hamdan decision??

                      The one that didnt happen?

                      lol.

                      and im the ignorant one??

                      by kulshan on Sun Aug 05, 2007 at 09:33:58 AM PDT

    •  Hope I'm wrong. I'd read a source that made

      the claim.  If wrong I'm happy and will rescind that portion of criticism.

      by NearlyNormal on Mon Aug 06, 2007 at 12:03:51 PM PDT

•  Why wait? we should discuss punishing them now.

  They have already sold us out.

  The ink's dry.

  The problem is this nonsense about sunsets. Pure Bullshit of Epic Proportions. Bridges for sale, and all that.

  See also "Of course I'll respect you in the morning, bitch". Same shit, different rendition.

  I am unsure we can do much of anything to punish them.

  I have been very big on encouraging people to stop sending them money, for it's the only thing I think they care about.

  Running new candidates is the other thing and thats like growing trees when you need a wall now.

  We could and should jam their phones for several days complaining to them and taking up their time.

  Something that really impacts them, if we have any real power left.

  by xxdr zombiexx on Sun Aug 05, 2007 at 07:04:28 AM PDT

  •  I didn't say wait

    What I am saying is that, for now, when you complain to any of the 57 that you do not agree with their assessment that the severity of the terrorist threat justifies encroaching on civil liberties for the next six months, then they can simply respond that they disagree with you, and that in their assessment there is a very real and dangerous terrorist threat that must be countered by granting the President additional surveillance authorities over those months.  If at the end of those six months they cannot show evidence of a terrorist plot thwarted by means of the additional surveillance activities, then their prior response to your complaint is no longer available, and the 57 should then be made to stand in the now unavoidably harsh light of accountability.

    by Foodle on Sun Aug 05, 2007 at 07:28:58 AM PDT

    •  one Friedman unit away.

      I can't wait for them all to explain.  And Reid and Pelosi too, for making it all so easy, so smooth, so quick.  Six months...and all will be explained.

      ...somehow, I suspect not.

      by Glorfindel on Sun Aug 05, 2007 at 08:38:45 AM PDT

•  We are in the "Dark" Ages...

  The evil of this administration was temporarily condoned yesterday.  NO excuse is acceptable!

  We may need a third party.  I don't know the solution but I DO know the monsters who control "Georgie" are laughing and celebrating again today and that is unacceptable!

  by goldkeyrealty on Sun Aug 05, 2007 at 07:09:58 AM PDT

•  "We The People"

  MUST continue to shine the light into the sewer that is Washington.  The rats will scamper back into the darkness.  But follow them with the illumination of opposition.  Rant and scream but whatever you do, don't stop fighting these monsters.

  Our faith was misplaced in '06.  Even the new members who swore to fight the evil that is the Bush administration have become sheep being led to the slaughterhouse.

  by goldkeyrealty on Sun Aug 05, 2007 at 07:14:36 AM PDT

•  You can only call youre representative so many..

  times. Its ridiuclous , but clear, that this is not a representative government. With CongressCritters voting in absolute opposition to their constituents, what is the solution??

  More petitions??
  More protests??

  Its become painfully obvious to me that this country is not all its been cracked up to be. That the "greatest country on earth" spiel, is just that. If the u.s.a. is the great hope for the world, were all screwed.

  by kulshan on Sun Aug 05, 2007 at 07:40:08 AM PDT

•  Mr. Foodle

  Would you care to show me anything in the old FISA law that was insufficient in protecting us against whatever threat might be lurking?  

  The "they know something we don't know" defense only works if you can do that.  I read Senator Webb's "justification" closely and saw nothing remotely connected to that.

  All they did was validate Bush's ability to work outside the system of checks-and-balances and oversight.

  If there was a loophole in FISA, they could have plugged THAT loophole without doing this.

  I'm also quite sure that the Bushies will concoct "thwarted threats" as needed for PR, as we saw during the 2004 Democratic Convention.  The web is full of wingnuts claiming that Bush's NSA intrusions have stopped hundreds and hundreds of terrorist attacks.

  I guess they figure the six guys in new sneakers in Florida were going to rampage coast-to-coast or something.

  by Pundit Hater on Sun Aug 05, 2007 at 07:42:19 AM PDT

  •  Once again

    I didn't say that I agree with the position of the 57, that I accept their arguments, or that I don't think there should be any voices raised now in opposition to those positions and arguments.  What I am saying is that however good the arguments currently are against the 57, they will be that much better in six months if we pause to recognize that even if we accept arguendo the excuses of the 57, the logic of their own arguments put them firmly on the hook in six months.

    by Foodle on Sun Aug 05, 2007 at 07:49:06 AM PDT

    •  I dont think waiting for Bush to Spy on MOre ....

      Americans is going to make the arguement any stronger. Thats the same flawed reasoning given by our representatives in May in refrence to a withdrawl from Iraq. That the arguement for withdrawl will only be strengthened.

      Meanwhile people die.

      While we "strengthen" our arguement.

      So you want to let Bush spy on us for 6 mos , to prove that he shouldnt be allowed to spy on us??

      Huh.

      I believe the Supreme Court ruled on this is in ..... June I believe.

      Said Dumbya had committed a FELONY by signing a Executive order for the wireless surveilance program!!

      Does the arguement against warrant-less spying need more "strength"  than the Supreme Law of the Land??

      by kulshan on Sun Aug 05, 2007 at 08:04:20 AM PDT

      •  Sigh

        Once again, I did not say that I agree with the 57 or that I want to let Bush spy on us for the next six months.  What I have said is that even the arguments of the 57 make them unavoidably accountable at the end of those six months.

        No, the Supreme Court has not ruled on Bush's FISA violations.

        by Foodle on Sun Aug 05, 2007 at 08:20:11 AM PDT

        •  HUH??

          And my point is that youre logic is flawed.

          Not to mention any surveilance or foiled plots will of course be classified.

          And You will have to pardon me while I laugh for a few minutes at "unavoidably accountable"........

          are u talking about Politicians ????

          BWAHHHHH! lmao

          by kulshan on Sun Aug 05, 2007 at 08:52:11 AM PDT

          •  How so?

            And my point is that youre logic is flawed.

            All you gave us was inapposite premises and factual inaccuracy.  How does that even begin to address the logic of my argument, much less prove it flawed?

            As for foiled plots being classified, that hasn't been the position taken by the Bush administration in the past, when they have been all too willing to try to exploit anything that could possibly be spun as a thwarted terrorist attack.  Furthermore, it is not the details of an attack thwarted via the additional surveillance activities that is required.  Rather, we should be pressuring those Democratic members of the House and Senate intelligence committees who voted against S.1927 to commit to providing us with a simple yes or no answer in six months as to whether a terrorist attack was actually thwarted by the surveillance activities authorized by S.1927.

            by Foodle on Sun Aug 05, 2007 at 09:08:51 AM PDT

        •  oh and as for the supreme court not ruling FISA

          see.....

          Hamdan Case.

          wow.

          cant believe u didnt hear about this since ya already read the amendment for FISA.

          by kulshan on Sun Aug 05, 2007 at 08:59:39 AM PDT

          •  Hamdan was not about FISA n/t

            by Foodle on Sun Aug 05, 2007 at 09:09:14 AM PDT

        •  Since youre such a fan of reading legal jargon...

          http://www.hamdanvrumsfeld.com/...

          there is the Decision that the Supreme Court didnt make on wireless surveilance.

          lol.

          and so i guess youre insult about my intelligence should be taken with a grain of salt.

          considering the source and all.

          by kulshan on Sun Aug 05, 2007 at 09:04:53 AM PDT

          •  Too much salt already

            Hamdan does not directly address FISA or the Bush administration's arguments that it had the authority to operate outside of FISA.  At most Hamdan contains an analogous argument against the use of the AUMF as authorizing detention of Hamdan, but that argument as applied to FISA has not been adjudicated by the Supreme Court.  Furthermore, even if the Court were to take away the AUMF claim, that is only one of the arguments that the Bush administration has advanced as independent authorization to operate outside of FISA.  It is entirely possible that the Court could take away the AUMF claim and still uphold the warrantless wiretapping program as legal.

            Your claim that the Supreme Court said that Bush had committed a felony by signing a Executive Order for the wireless surveillance program is factually inaccurate.

            by Foodle on Sun Aug 05, 2007 at 09:19:05 AM PDT

            •  I guess Greenwald is wrong too??

              Wow didnt realize that a anonymous blogger was more of an authority than a respected analyst/journalist??
              Title:

              "Supreme courts ruling in WHamdan means Warrantless Eavesdropping is Illegal"

              By: Glenn Greenwald on Sunday, July 9th, 2006 at 9:43 AM - PDT  
              Ever since the Supreme Court in the Hamdan case ruled that the Bush administration’s Guantanamo Bay military commissions violate both federal law and the Geneva Conventions, the President has been paying lip service to his "willingness" to comply with that ruling.  But the Court’s ruling goes far beyond the limited question of whether military commissions are legal.  To arrive at its decision, the Court emphatically rejected the administration’s radical theories of executive power, and in doing so, rendered entirely discredited the administration’s only defenses for eavesdropping on Americans without the warrants required by law.

              Actual compliance with the Court’s ruling, then, compels the administration to immediately cease eavesdropping on Americans in violation of FISA.  If the administration continues these programs now, then they are openly defying the Court and the law with a brazeness and contempt for the rule of law that would be unprecedented even for them

              The starting point for any discussion of the illegal eavesdropping program should be the fact that the United States has had a law in place for almost 30 years now which makes it a criminal offense — punishable by 5 years in prison and a $10,000 fine — to eavesdrop on Americans without judicial approval and oversight. And everyone, including the Bush administration, acknowledges that they are doing exactly what the criminal prohibits — that is, eavesdropping on Americans without the warrants required by that law.

              So the beginning premise – acknowledged even by the administration — is that the Bush administration is engaging in the very eavesdropping expressly criminalized by FISA. For that reason, the Bush administration has been scurrying around to concoct legal theories to justify the President’s blatant defiance of the criminal law.  To do so, the Bush Justice Department released a "White Paper" on January 19, 2006, which purported to set forth all of the administration’s defenses for its warrantless eavesdropping.

              Despite its length (42 single-spaced pages), the Justice Department advanced only two arguments to justify the President’s law-breaking — (1) that Congress implicitly authorized the President to eavesdrop in violation of FISA when it enacted a resolution in September, 2001 authorizing the use of military force in Afghanistan and against Al Qaeda; and (2) that the President is constitutionally empowered to act as the "sole organ" with regard to national security, and nothing — not the Congress, nor the courts, nor the law — can limit or regulate those powers.

              Both of these defenses — the only ones which the adminstration has to justify the President’s violations of FISA — were decimated by the Supreme Court in Hamdan — argument (1) so clearly rejected that no lawyer could continue to advocate it in good faith, and argument (2) almost certainly as discredited.  That the Supreme Court’s Hamdan ruling constitutes a wholesale rejection of the Bush administration’s legal defenses is made clear from the plain language of the Court’s reasoning, for reasons I elaborated on here (see points (3) and (7)) and here.  Given how clear the Court’s decision is on these issues, it is unsurprising that there appears to be a consensus, even among those previously defending the adminstration’s warrantless eavesdropping program, that Hamdan constitutes a rejection of those defenses.

              As Anonymous Liberal persuasively argues, this situation means that no government lawyer could possibly authorize the continuation of the warrantless eavesdropping program because the Supreme Court has rejected as invalid the only two legal bases which the administration previously cited to justify its warrantless eavesdropping.

              As A.L. notes, the President has claimed that the program can only continue if it is reauthorized every 45 days, including by Justice Department lawyers who are required – every 45 days – to certify that there the program continues to be legally authorized. But even from the administration’s perspective — assuming that they actually do recognize their obligation to abide by the Supreme Court’s ruling — there are no remaining legal theories which can claim to bestow unto the President the power to violate FISA by eavesdropping on Americans without warrants.  Thus, no administration lawyer could now certify this program as legal.

              The implications of Hamdan extend at least as much into the political realm as they do the legal realm.  Specifically, the unambiguous rejection by the Supreme Court of the administration’s legal defenses removes the principal excuse previously offered by  Democratic Senators for refusing to endorse Sen. Russ Feingold’s Resolution to censure the President for violating FISA.
              Senators such as Barack Obama have previously refused to support Sen. Feingold’s resolution on the ground that — even though the President’s eavesdropping is without legal authorization – the President at least believed he was complying with the law because administration lawyers told him that he had legal authority to do this.  In explaining why he refused to support Feingold’s Censure Resolution, Obama argued:

                 But my and Senator Feingold’s view is not unanimous. Some constitutional scholars and lower court opinions support the president’s argument that he has inherent authority to go outside the bounds of the law in monitoring the activities of suspected terrorists. The question is whether the president understood the law and knowingly flaunted it, or whether he and his aides, in good faith, interpreted their authority more broadly than I and others believe the law allows. Ultimately, this debate must be resolved by the courts.

              This "debate" has now been "resolved by the courts." Thus, leaving aside whether that was previously a persuasive reason for refusing to censure the President, it is now plainly the case, in light of Hamdan, that there is no longer any good faith basis left for violating FISA.  Ongoing warrantless eavesdropping can only be ordered by the President with a deliberate intent to break the law.  After Hamdan, there are no more excuses left for the President to violate FISA, and there is therefore no more excuse left for Democratic Senators to refuse to take a stand with Sen. Feingold against the administration’s lawbreaking.

              With regard to the President’s illegal eavesdropping specifically, and with respect to his claimed power to operate outside the law generally, the Supreme Court’s decision in Hamdan changes everything.  By rejecting the only two legal defenses previously offered by the administration, the Court has presented the President with a stark choice — either begin complying with FISA when eavesdropping on Americans, or openly acknowledge that he will defy the Supreme Court.

              Journalists should begin asking the Justice Department every day what their legal justification for warrantless eavesdropping is now that Hamdan has rendered frivolous their prior legal arguments in defense of the President.  The administration’s theories to justify the President’s lawbreaking have always been frivolous.  But for those pretending not to recognize that fact, the Supreme Court has so ruled.

              The administration’s theories to justify the President’s lawbreaking have always been frivolous.  But for those pretending not to recognize that fact, the Supreme Court has so ruled.

              If we are a country that continues to operate under the rule of law, compliance with the Supreme Court’s ruling compels the immediate cessation of the President’s warrantless eavesdropping program, as well as what are undoubtedly the other, still-secret programs prohibited by law but which have been justified by these same now-rejected theories of unlimited executive power.  Put simply, after Hamdan, there are no more excuses left for the President’s refusal to comply with the law.

              by kulshan on Sun Aug 05, 2007 at 09:38:45 AM PDT

              •  Glenn is not the Supreme Court

                And his saying that Bush committed a felony by signing a Executive Order for the wireless surveillance program is not at all the same thing as the Supreme Court saying it.

                by Foodle on Sun Aug 05, 2007 at 10:07:06 AM PDT

            •  And there might be life on Mars!

              "It is entirely possible that the Court could take away the AUMF claim and still uphold the warrantless wiretapping program as legal."

              not after the ruled the executive order that authorized the program was unconstitutional.

              which they did.

              so i have refuted avery one of youre claims with sourced facts.

              What do you have??

              Speculations and insults.

              nice.

              U work for Rove??

              by kulshan on Sun Aug 05, 2007 at 09:42:08 AM PDT

              •  No such ruling

                The Supreme Court has made no ruling that the EO authorizing the warrantless wiretapping program was unconstitutional.  Furthermore, the statutory ruling they made on the AUMF in Hamdan does not address the administration's independent argument grounding the authority for the warrantless wiretapping program in Article II powers.  No, Glenn Greenwald does not find the administration's Article II arguments compelling, and neither do I.  That doesn't mean that the Supreme Court (especially now with Roberts and Alito) won't -- they have frustrated both Glenn and me before.  Regardless your new claim that the EO was ruled unconstitutional is as factually inaccurate as your prior claim that the signing of that EO was ruled a felony.  The Supreme Court has taken no such actions.

                You have not refuted my claims.  You have only offered speculation, insult, factual inaccuracy, and ignorance of the law to support your own incorrect claims.

                by Foodle on Sun Aug 05, 2007 at 10:15:24 AM PDT

•  I doubt the Bush folks will have to concoct any..

  Terrorist attacks to justify their actions. They havent had to justify their actions for the last 6 years , what is going to change?

  Nothing.

  Whats gonna happen to Bush administration??

  Nothing.

  What would change if Dems had super majority??

  You guessed it.

  Nothing.

  by kulshan on Sun Aug 05, 2007 at 07:51:05 AM PDT

•  How?

  Organize their constituents to call the Blue Dogs and tell them their displeasure for woting that way.

  by timber on Sun Aug 05, 2007 at 07:55:51 AM PDT

  •  Yeah that will work!

    call youre representatives!!!

    That helped in May with the Emergency Spending Bill didnt it?

    And all the calls for Impeaching the Attorney General??

    Yeah thats sure worked.

    by kulshan on Sun Aug 05, 2007 at 07:59:18 AM PDT

    •  Yes but their constituents are the problem

      Unless you changed their constituents thinking they would vote against reality.

      by timber on Sun Aug 05, 2007 at 08:06:44 AM PDT

      •  REALITY??? POLITICS??? sorry oil&h20

        the REALITY is that 8-% oppose the war and our rep's continue to ignore their constituents. So the constituents are WAYYYY ahead of legislator on pretty much all the issues. A majority want the war to end, warrantless surveilance to end, Dumbya impeached, Gonzo Impeached.

        But are our Reps listening ??????

        Nope.

        So who u need to convince???

        Got any money in a briefcase so u can play lobbyist for a day??

        by kulshan on Sun Aug 05, 2007 at 08:17:05 AM PDT

        •  their Constituents in their red district

          by timber on Sun Aug 05, 2007 at 09:21:56 AM PDT